Today in United Nations History - In 1947, the General Assembly votes to partition Palestine between Arabs and Jews; in 1950, North Korean and Chinese troops force a desperate retreat of UN forces from North Korea; in 1982, the General Assembly passes Resolution 37/37, stating that Soviet forces should withdraw from Afghanistan; in 1990, the Security Council passes Resolution 678, authorizing military intervention in Iraq if that nation did not withdraw its forces from Kuwait and free all foreign hostages by January 15, 1991.

November 30, 2004

I Am Not a Bigot

I just got an e-mail from Career Services, advertising a summer 2005 externship position with a United States District Court Judge. It requested that interested applicants send, along with resume and transcript, a less-than-10-page writing sample. Wondering what kind of writing sample would most appeal to the Judge, I looked him up online and discovered that he had been appointed by a Republican president. Could any past or present employees of judges shed light on whether one's political affiliation/ jurisprudential philosophy matters to them?

Also, whether they prefer writing samples that exhibit a lot of legal research and bluebook citation skill in the service of a dull question (such as The Memo), or writing samples that creatively engage an issue relevant to the judge's caseload. The Curmudgeon, speaking about clerkship applications, said, "A sample should be concise and should demonstrate your ability to dissect and analyze a difficult legal problem. A discursive, purely descriptive essay-style sample does not provide a judge with an opportunity to see what your work product will be like if you are hired." Good advice, but I'd like something more specific.

November 29, 2004

Today / November 29

Today in United Nations History - In 1947, the General Assembly votes to partition Palestine between Arabs and Jews; in 1950, North Korean and Chinese troops force a desperate retreat of UN forces from North Korea; in 1982, the General Assembly passes Resolution 37/37, stating that Soviet forces should withdraw from Afghanistan; in 1990, the Security Council passes Resolution 678, authorizing military intervention in Iraq if that nation did not withdraw its forces from Kuwait and free all foreign hostages by January 15, 1991.

November 27, 2004

The Polygamists Next Door

In discussions of how to redraw the lines of marriage to include same-sex unions, polygamy frequently is raised as the next stop on the slippery slope to anarchy. Some say polygamy has a better claim to inclusion, citing its traditional place among societies as far-flung in time and space as ancient Japan and the modern Middle East, as well as contemporary behavior. This claim always strikes me as over-focused on historical precedent as a basis for legitimacy. Of much greater importance is the compatibility of any new-to-U.S. practice with our legal ideals and trends. Same-sex marriage seems not only permitted but required by the move toward gender equality and non-discrimination against homosexuals. In contrast, polygamy appears likely to encourage inequality and abuse.

"Polygamy" has always seemed vaguely liberal, like some swinging Southern California hippie scene, but Krakauer's story is violent to the core. It is the story of forced marriages, rape, child sexual abuse, religious blackmail, and torture in the name of God. Its victims are famous -- Elizabeth Smart, for example, the Utah teen who was kidnapped and abused by a fundamentalist couple -- and not so famous, and they number in the thousands.

Ironically, these polygamous sects survive -- and indeed are tolerated -- out of inherent liberalism, a respect for free speech and religious freedom. Law enforcement is loathe to act quickly for fear of appearing to violate these basic American rights. And yet it is the challenge of law enforcement, as an extension of the will of the people, to protect young girls and women from losing all of their civil rights and suffering sexual humiliation and violence in the process.

The men of the Fundamentalist Church of Jesus Christ of Latter-day Saints avoid prosecution by registering only one of their marriages with the state. This strategy leaves without legal resources the other "wives" who, even more in this patriarchal society than in mainstream America, are dependant on their husbands. If they want to leave, they cannot demand alimony or a division of marital resources.

However, if there are any states that do not explicitly ban multiple marriages -- no state provides for them -- theoretically members of this sect could move there en masse and do what the people of Eldorado, Texas fear that they will: democratically change the system to suit themselves. Although initiatives such as Issue One in Ohio have thrown local recognition of same-sex partnerships into legal question, in the absence of similar hostile legislation, polygamists might be able to get their own city ordinances.

(Regarding the verity of the post title: Eldorado isn't quite next door; it's a few hundred miles from my hometown. But the main difference between small towns in West and East Texas is that they have oil and dirt; we have trees and... dirt.)

November 25, 2004

Today / November 26

Today in History (1941) - President Franklin D. Roosevelt signs a bill establishing the fourth Thursday in November as Thanksgiving Day in the U.S. On the same day, a fleet of six aircraft carriers leaves Hitokapu Bay for Pearl Harbor under strict radio silence, and the Hull note, demanding complete withdrawal from China, is delivered to Japan by the U.S.

November 24, 2004

Today / November 24

Today in History (1859) - Architect Cass Gilbert, designer of U.S. Supreme Court Building, is born. Eighty eight years later, the House of Representatives votes 346 to 17 to approve citations of contempt of Congress against the "Hollywood 10" who refused the cooperated with the House Un-American Activities Committee.

November 22, 2004

Calling New York Area Federalists

Be guinea pigs:

My name is Robbie Millstein and I am a PhD student in clinical psychology at New School University. As part of my research here, I am embarking on a study in the cognitive lab of William Hirst regarding memory. I would greatly appreciate [...] your help in recruiting Federalist Society members to participate in my study. It only takes about 1 hour, pays 25 dollars, is noninvasive, and takes place in our offices here at the University (14th and Fifth Ave). I know this is somewhat vague but to be more specific may interfere with resulting data. However, please feel free to contact me for further info.

If anyone is interested, leave a comment or send me an e-mail (see links at the top right) and I'll put you in touch with him.

Good Student, Bad Blawgger

PG: Why must I go to class? why why why? How much do I want to follow U2 around NYC?
PG's Sister: SKIP CLASS. This is a one-time opportunity.
PG: Even if I skipped class, I can't miss Posner. Posner is like the U2 of law. Well, more like the Alice Cooper; kind of an enfant terrible.

So I did go to Judge Richard Posner's talk on intelligence reform and civil liberties, but was somewhat distracted, and thus the resulting notes are somewhat disjointed. (Short version: he doesn't seem to have changed his mind since he wrote this.) I pre-emptively apologize to Judge Posner for any mischaracterizations or misquotes of his words.

For those interested in judicial attire, he wore a dark charcoal suit (I don’t know suits any better than Heidi does, so all I can say is that it had three buttons on the cuffs and little be-flapped pockets at the bottom of each side) and a pale mustard sweater. The collar of a light blue shirt and the knot of a dark blue tie criss-crossed by gold bands peeked out of the sweater's V-neck.

Posner opened with the changes he proposes for the Federal Bureau of Investigation, which agency he characterizes as a plain clothes police force. He sees a conflict between the criminal investigation and security functions with which the FBI currently is tasked.

In criminal investigation, an agency's job is to wait for a crime to be committed (or even encourage the crime to happen), investigate, collect evidence usable in court, prosecute and hope for conviction. Its success is measured by quantity and quality (i.e. not overturned on appeals) of convictions, and thus it is careful to avoid anything that would spoil prosecution.

A security-focused agency is crime preventive, surveillance-oriented; it may disrupt the group it is watching through misinformation or harassment, can intimidate it through blackmail and is not concerned with gathering evidence scrupulously. Such an agency can report the group to authorities if there’s a case on other grounds, such as telling the INS about a potential group with membership violating immigration law. Occasionally it turn things over to a prosecuting agency. [One question I had about this process was how to separate the information gathered by the security agency from the information that the prosecuting agency would use in court.]

As he does in the article, Posner compared his hypothetical separate domestic intelligence agency with the units performing similar work in other countries. For example, Britain's MI5 has no power of arrest, but has to go through the Scotland Yard branch specializing in threats to national security. He asked, "Why did 9/11 commission not recommend this modest reform, going in the direction of what our peer nations already do, instead going to this rather grandiose proposal for centralization that thus far has struck out in Congress?"

Posner then moved on to the part of his talk that did not appear in the NYTimes article. He said that the American Civil Liberties Union has opposed the 9/11 commission's recommendation on the grounds that this national intelligence director would have both foreign and domestic intelligence access. A barrier is maintained for fear of having CIA-esque tactics used on domestic residents, and because civil libertarians are opposed to having a MI5 clone in the U.S. According to Posner, the general civil liberties position is that there must be no relaxation in the existing protection of civil liberties, even to meet larger threat of terrorism and danger. Civil libertarians ought to be willing to engage empirically with the security advocates.

Posner sees nestling security into the FBI, which is dominated by lawyers and criminal investigators, as a sure handicap. The 9/11 commission report made clear that the greatest failure was by FBI, and he said that is because FBI legalism is hostile to the intelligence role.

He described one of the arguments of civil libertarians as "that if you once start reducing civil liberties to deal with terrorist threat, is that even when threat abates, the liberties will not come back to their former level." Posner called this a "ratchet effect" – every crisis will bring further diminution of civil liberties. He rebutted it with information from Perilous Times, which book embraces the rebound theory that civil liberties return to their pre-crisis level once the danger has passed. Posner claimed that the ratchet effect never has been observed in U.S. history and should not be considered a serious problem.

Drawing some laughter, he called civil liberties "the religion of the liberal left." Posner says there is a religious, dogmatic, strongly emotional and unreasoned aspect to the advocacy for civil liberties, with the Constitution as sacred document, like the Bible, and Constitutional freedoms the articles of the faith.

The Q&A got somewhat repetitive; here's my best recollection of it:

Q: When will the civil liberties be restored, if we don't know when the war on terrorism will be over?

A: Greatest restrictions occur at the outset of the war. The detention of Japanese Americans was authorized in March 1942, when the exact threat of Japanese Americans was unknown and thus most feared. The most serious infringements of civil liberties during Cold War at the beginning, in late 1940s and 1950s. Keep in mind that the Cold War went all the way until the late 1980s, but it was in the '60s that the Supreme Court began reinstating civil liberties.

Most people put much more weight on safety than on civil liberties. The exercise of free speech is of great concern to a minority composed mainly of journalists, professors and students. (Posner added that he was joking about that last comment.) He agreed that the government includes people whose agenda is not limited to fighting terrorism, who will take the opportunity presented by Americans' concern about their safety to usurp more liberties, but he said that civil liberties organizations had actually undercut their own ability to fight back because of their alarmism.

"The ACLU by its extremism has undermined support for its programs. A plaintiff’s lawyer doesn’t take every case that comes in the door, but the ACLU does, Nazis, child molesters, whatever. It doesn’t matter how obnoxious the client or how absurd the position. The civil liberties people are always there to support the extremist view. A more tempered approach would be more effective, because of the belief in civil liberties in the U.S. even among people who don't think of themselves as civil libertarians. To appeal to those people, you need to demonstrate that you don't consider the Bill of Rights to be a suicide pact."

Posner agrees that it would be a mistake to have foreign and domestic intelligence in the same agency; every other non-totalitarian country has made the separation, despite having fewer civil liberties than the U.S. The reason is that the kind of people you want in foreign intelligence, engaged in dangerous activities and working with unsavory people, are not ones you want doing domestic intelligence.

The reason for spinning off the security branch of FBI into its own agency is to make security the single focus, so it will get along better with CIA, which has similar focus. "The FBI regards CIA as outlaws; CIA regards FBI as prissy lawyer spear carriers. In the 1970s, the directors refused to talk to each other."

Posner also asserted that our civil liberties as currently understood have been created by Supreme Court justices. When one student said that curtailing our liberties was un-American, Posner retorted that we didn't have Miranda rights in the 1950s -- were we not American then? [I would have replied that we were less American in the ideal sense than we are now with those rights, but the questioner didn't say that.] Posner said that he had a practical objection to excessive profiling of Muslims and Middle Easterners, as this encourages the enemy to recruit people who don’t fit the obvious profile.

I didn't post about Posner's NYT article when it came out, but I think it's quite solid in most respects. The usual Posnerian tendencies are in there: the preference for competition as more likely to yield good results than would centralization; the contempt for soft measures, in this case the the "hearts and minds" approach to decreasing terrorism; the contrarianism, which here declares that we have no criteria for determining which cities are most vulnerable to terrorist attack and that making the population centers impregnable will lead to hits on Kalamazoo.

The main dispute I had was with this remark: "The Soviet Union operated against the United States and our allies mainly through subversion and sponsored insurgency, and it is not obvious why the apparatus developed to deal with that conduct should be thought maladapted for dealing with our new enemy."

In my poorly-informed opinion, it is maladapted because the Soviet Union and its bloc were state actors. While it operated through subversion and sponsored insurgency (though also direct invasion; see Afghanistan), these did not pose direct threats to civilians on American soil, Joseph McCarthy's fears to the contrary.

Moreover, if we really do view the Cold War as a conflict with the Soviet Union and not with the ideology of communism, then our Cold War apparatus is even more useless in the current conflict, because of the degree to which Al Qaeda has become a symbol, an associational device for "grassroots" terror groups who draw on it for inspiration more than for direct support. While I would not underestimate Al Qaeda-the-organization-under-Bin-Laden's resources, they do not exist in the way that the Soviet Union's did. They are without a government and nation openly protecting them, as the USSR did for Communist insurgents, and they rely on a much greater deal of individual work.

The Soviet Union apparently desired to spread the Communist revolution and its own power over other nation-states -- a goal in which it succeeded to some extent until the collapse of Communism. In contrast, Al Qaeda desires to create Islamic theocracies uninfluenced by modernism or Westernism -- the perfect impossible goal into which a million martyrs may be thrown. With the USSR, we had to get double agents who worked for us inside the Soviet intelligence agencies, track Soviet military installations by satellite, etc. The work to be done with Islamic terrorism is similar in some respects but also very different. The people poring over satellite photos need to watch for small training camps, not missiles. The spies have to be plausible in the role of disaffected young men ready to sacrifice their lives, not as hardened bureaucrats.

This criticism of Posner's desire to parallel to past struggles notwithstanding, I do think he's right that the U.S. is too reluctant to use the available information on dealing with terror groups. Germany, Italy, Britain -- we claim that Europeans can't understand because they didn't go through September 11, but they saw terrorism on their soil long before we did.

There's also domestic organizations that have been watching out for terrorists, which Posner mentioned briefly in his talk, such as the Christian extremists who bomb abortion clinics. At the time of the anthrax attacks, the abortion providers were ignored despite their past experience. Among the many institutional biases that make the U.S. government resistant to change regardless of party leadership, I worry that the Bush Administration is particularly reluctant to find wisdom either abroad or in disfavored domestic organization.

Deer Hunter

A deer hunter shot and killed five people and injured three others in northwestern Wisconsin following a dispute about a tree stand during the hunt’s opening weekend, authorities said.

(I know that the De Niro film title thing is a complete coincidence, but if there's an incident where an angry person involved in stock trading -- in either the FFA or Wall Street sense -- starts shooting people, I promise to refrain from making it a triple.)

November 21, 2004

Today / November 22

Today in History (1963) - In Dallas, Texas, President John F. Kennedy is assassinated, Governor John B. Connally is seriously wounded, and Vice-President Lyndon B. Johnson is sworn in as the 36th President of the United States. Forty-one years later, the tragedy becomes a video game.

November 18, 2004

Today / November 18

Today in History (1987) - Congress issues its final report on the Iran-Contra affair, stating that President Ronald Reagan bore "ultimate responsibility" for wrongdoing by his aides and his administration exhibited "secrecy, deception, and disdain for the law."

November 16, 2004

Blogger, Bar & Birthday

Congratulations to KipEsquire on formal admission to the New York Bar, and happy 38th birthday. He also has an interesting post about how, in all the wailing about backlash against the advances in equality for homosexuals, we may be missing the backlash that will come against equality's opponents.

Congratulations to all the other newly hatched, no longer larval lawyers who passed the bar as well.

UPDATE: Speaking of backlash -- not that he was ever popular to begin with -- check out this week's Onion for some knocks on Ashcroft. What Do You Think: "If Palestine needs a hard-line religious nutjob to fill Arafat's position, our old attorney general is looking for work."

November 15, 2004

YOU Could Be a Runaway Juror!

This NewBlueShoe post on his feelings after convicting a man -- not as a prosecutor, but as a juror -- reminded me of a question I'd been carrying around: are people trained in the law (law students, clerks, lawyers, judges, professors) better than the general public about showing up for and not trying to plead their way out of jury service? And do they get discriminated against by either side in jury picking?

I have no data on the first question, but I would like to think that the answer is yes. Considering that nearly all law stems from the facts found at jury trials, even if it is made on appeals, we should have some sense of obligation to play our part in the system. Still, the scornful attitude toward people who end up on juries -- I'm thinking of the comment here that "As to juries, I don't hold them in contempt... I hold the jury selection process in contempt. It allows lawyers to stack the jury which the lesast intelligent and the most easily manipulated" -- makes me wonder.

The conventional wisdom on the second question, according to one of my professors, is that both sides generally dislike having a legally-trained person in a jury because they worry that she will dominate proceedings. However, if one side thinks that its case would be overwhelmingly favored by the trained person, it will push to have her on the jury. My professor said that he'd once gotten very close to serving on a jury, and then the case was thrown out. He was really broken up about it, too.

Damn You, Will Baude

His query about instances of Justice Thomas's speaking up during oral arguments has tugged me into a procrastination activity I'd heretofore avoided: Oyez recordings. And the second legal writing memo's due, IRACs and all. Oy. (On the IRAC debate, I side with Will somewhat on the difficulty of fitting one's prose into its strictures, and very much with Heidi on the appeal of the application section, but admit Tony to be correct in saying that IRAC makes writing easy to digest. I just prefer fluffy, heartburn inducing souffles.)

To answer: Justice Thomas gets garrulous in the Oyez audio of NASA v. FLRA 40:00 to 47:03, ending in a crowd-pleaser line. Incidentally, Thomas has a nice voice; his quietness during arguments is unfortunate for aesthetic reasons even if not intellectual ones. In VA v. Black, Thomas didn't so much ask questions as make a statement. With a similar issue of racist symbolic speech in Capitol Square Review Board v. Pinette, he pipes up at 52:30 to debate the meaning of a Klan cross and talks about its being burned even though that wasn't at issue.

Crescat & Co. should appreciate this: Earlier in the oral argument, Justice Scalia asks at 8:05 if the Libertarian Party could have put up an unattended display or if the Square was restricted to religious holiday displays, and if they did, would there be a concern that the state was endorsing the Party? The poor attorney says there's no Establishment Clause for political parties, and then Scalia drags in the Nazis hind foremost.

I wonder if I could get a Diwali display into my hometown's public square as an "early holiday lighting ceremony"...

November 14, 2004

Today / November 14

Today in History (1995) - A budget standoff between Democrats and Republicans forces the federal government to temporarily close national parks and museums and run most government offices with skeleton staff.

November 13, 2004

For the Randomly Curious

For no good reason at all, it occurs to me that I have no idea why New York City is called "The Big Apple." Some stories--apparently apocryphal--reference prostitute slang as the phrase's origin, but most sources seem to agree on a less exciting explanation:

“The Big Apple” was the catchphrase of New York Morning Telegraph track writer John J. Fitz Gerald in the 1920s. He admitted this twice and it was the name of three of his columns. He picked up the term from African-American stable hands at the Fair Grounds racetrack in New Orleans, probably on January 14, 1920.

The “Big Apple” racing circuit had meant “the big time,” the place where the big money was to be won. Horses love apples, and apples were widely regarded as the mythical king of fruit. In contrast, the smaller, poorer tracks were called the “leaky roof circuit” or “bull ring” tracks.

“The Big Apple” became the name of a club in Harlem in 1935, and Harlem itself was referred to as the “apple” at this time. A club in Columbia, South Carolina also took the “Big Apple” name, and it was here that 1937’s national “Big Apple” dance craze began.

Perhaps I was expecting tales of acid trips or poetic inspiration . . . ? But there you have it. Horses like apples.

I realize the post was tongue-in-cheek but how could a restriction on abortion implicate the takings clause? I suppose you could consider it a regulatory taking, but even then the compensation due would probably be zero under Brown v. Washington, since being unable to make that particular use of one's fetus doesn't clearly cause one to suffer economic injury... maybe time missed from work on unpaid maternity leave?

The "abortion prohibition as Fifth Amendment violateion" argument has been made by Susan E. Looper-Friedman in Keep your Laws Off My Body: Abortion Regulation and the Takings Clause, 29 New Eng. L. Rev 253. The SCOTUS precedent for the reason to prohibit abortion focuses on public morality, as opposed to fetus-as-legal-person. Under this view, one could say that the woman's body is the private property be taken for public use of public morality (so we can sleep easy at night without worrying about killed fetuses), without just compensation.

If one is going on the fetus-as-legal-person view, one is detaching Roe and subsequent abortion decisions from the Griswold through Lawrence line of privacy battling public morality cases, and basing the objection on abortion-as-murder. Then the government still is usurping the woman’s right in her body, albeit on behalf of a specific person rather than for the sake of the public.

However, looking through the prism of takings is very controversial, because it explicitly treats the woman’s body as property, somewhat along the lines of Posner’s economic analysis of rape. As Will says, there isn’t an obvious economic injury in being forced to bear a child, except for women whose professions center around their physiques and thus are incompatible with pregnancy, such as athletes, runway models, etc.

It would be almost as creepy to compensate a woman for the public’s use of her body to carry an unwanted fetus as it would be to compensate her for an individual's use of her body for unwanted sex. Just because there is a "fair market value" for doing these things voluntarily -- whatever the going rates for prostitution and surrogacy are -- doesn't tell us how to compensate someone who has been forced to do them.

Tort compensations aren't quite the same, because aside from the direct economic damage claim (which with both sexual assault and forced childbearing would be minimal in most cases), the main award is through punitive damages. It would be absurd to be "punishing" for something that, under a legal prohibition of abortion, would be official government policy.

The Takings Clause isn't a practically useful analysis for any area unless there is a just compensation that can be made. Hence the tongue-in-cheek-ness of saying it can be applied to abortion.

My Big Fat Non-Greek Wedding

The Crescatconcern that government recognition of same-sex marriages would eventually force churches to give the same recognition draws on the Boy Scouts and Bob Jones cases for precedents of the government's pushing private organizations into supporting the government pro-equality agenda. However, I think the fear of churches' being forced by anti-discrimination law, or pressured by the withdrawal of funding or tax-exempt status, into recognizing same-sex unions is unfounded.

Consider that despite a long-running public policy against religious discrimination, I still can't get married in a Greek Orthodox church -- or many other churches, for that matter -- because I'm not baptized at all, much less within a particular denomination. Even if I converted to Catholicism and took a vow of celibacy, I couldn't become a priest, despite public policy against sex discrimination, because I'm not a man. (Unless the Church recognizes men who were born as women to be men for the purposes of admission to the priesthood, which would make the Pope more progressive than the Michigan Women's Music Festival.)

The distinction between secular marriage and religious marriage is not new, and same-sex marriage is unlikely to blur it. When the Catholic Church did not recognize marriages that followed a divorce, the government did not force them to do so despite those marriages' having legal recognition. Even after the Defense of Marriage Act, the government has not prohibited any church from giving its blessing to same-sex unions. To require or prohibit religious recognition of a marriage, based on whether that marriage is legally sound, would constitute an enormous breach of the wall between church and state.

The right of private institutions to discriminate on otherwise prohibited bases, when such discrimination is fundamental to their identities, has been well-established and seems unlikely to be changed by legalizing same-sex marriages. Even in the case of the Boy Scouts, Justice Stevens's dissent said that if heterosexuality seemed an essential aspect of the Boy Scouts -- as being a boy is essential to the Boy Scouts, and their sex discrimination permitted therefore -- he would have OKed BSA's violation of New Jersey’s anti-discrimination statute.

Rather than leading to direct government pressure on private institutions, a more probable result of legal recognition for same-sex marriage is that this will increase popular approval of such unions, which is likely to create change from within. Of course, some religious groups have proven more susceptible to such internal dissent than others. Until 1930, Protestant denominations deemed contraception to be sinful, but the growing social acceptance of contraception -- including its legalization -- caused these denominations to change their policy. The Catholic Church, in contrast, has held firm on this issue despite the majority of North American and European Catholics' using forms of birth control other than abstinence. I suspect a similar pattern is likely to emerge if same-sex marriage gains legal acknowledgement.

November 12, 2004

Today / November 12

Today in History (1969) - Seymour Hersh breaks the My Lai story to the civilian public (the abuses already were being investigated by the military). Today is the 70th birthday of Charles Manson, who has been imprisoned since 1971.

November 09, 2004

Ignorance Is Bliss

The last few days in which second years can throw together a proposal for their Student Note are passing by, and there are indications of panic from somequarters. Hundreds, perhaps thousands of people are asking themselves, "How to equal William J. Trach for influence?" or "How to write something that a professor would agree to read more than once?"

While note advice from 3Ls Nick, Jeremy and Chris might be helpful, I've decided to offer my 100% inexperienced and uneducated 1L ideas for topics that any 2L would be insane to use for his or her note.

- Why all state bars should follow the lead of New York, California, Maine, Vermont, Virginia, Wyoming, and Washington in permitting people to join without having graduated from law school. If it was good enough for the Supreme Court, it's good enough for the Texas Bar Association.

- The strict licensing of public non-commercial dancing in NewYorkCity as violation of the First Amendment's guarantee of free expression.

- An examination of the anti-trust exemption recently granted to the Match (part of the Pension Funding Equity Act, H.R. 3108, Sec. 207, April 8, 2004; Match participants cannot be accused of violating antitrust law in federal court, but residency programs cannot collude to fix salaries or benefits.)

- The conflict between the two parts of the Sixth Amendment's "impartial jury" requirement when a representative cross section of one's community would include people who would be racially, religiously, politically and aesthetically biased against the defendant.

- Why all state bars should follow Wisconsin's lead and recognize a "diploma privilege," whereby graduates of the state's ABA-accredited law schools may be admitted to practice law without taking the State's Bar examination.

- A proposal to define the terms "race," "color," "religion," "sex," "gender" and "sexual orientation" by statute, so judges can stop assuming a common meaning or hauling out dictionaries.

- The incorporation of ethics into the teaching of law; a comparison between the professional responsibility courses at secular law schools and religious ones.

- Restrictions on or prohibition of abortion, on the grounds of state interest or public morality, as a violation of the Fifth Amendment's Takings Clause.

Ashcroft Yes, But Why Evans?

The rumbles of Attorney General John Ashcroft's resignation have been coming for some time, but the departure of Commerce Secretary Don Evans was a surprise. While there has been speculation about changes in nearly every Administration office, from vice president to Secretary of State, I hadn't noticed a reason given for Evans to leave. As late as this afternoon, news reports said,

Commerce Secretary Don Evans, a close friend of Bush, has also been tipped as a possible heir [to Treasury Secretary John Snow] but he could also stay in his current job, replace Card as chief of staff or go back home to Texas.

In any case, let the guessing begin as to whom President Bush will proffer as his next AG. Ashcroft was a long-time politician and favorite among the religious-conservative wing of the GOP, appointed to Justice in the wake of a disappointed 2000 bid for the Senate. Having been successful across the country this year, the Republicans have no disappointed Senate incumbents, and only one gubernatorial incumbent who won't return (New Hampshire Governor Craig Benson, defeated by Democrat John Lynch).

November 08, 2004

Being Jack Greenberg

As co-blogger Chris correctly predicted at 1 AM on election night, the presence of anti-marriage initiatives on the ballots of eleven states, plus the general backlash against advances in the equality movement, have been widely cited as a factor in President Bush's victory, particularly in his winning the popular vote. However, I think Chris has been too quick to cast this reaction as a "blame the gays" attitude.

Rather, I think that people are looking at Goodridge within a year of its resolution the same way some scholars have looked at Brown in the last decade: as a case decided correctly as a matter of constitutional law, but potentially unwise as a matter of political tactics. In this analogy, Chris is Jack Greenberg, and people like Waddling Thunder and Dianne Feinstein are Michael Klarman.

In February, I attended UVA Law's symposium on Brown v. Board of Education, andbloggedaboutit. There was an interesting intellectual tension in the event between those like keynote speaker Jack Greenberg, the attorney for the Delaware students attempting to de-segregate their schools, and professors Michael Klarman and Kara M. Turner, who cited the ways in which Brown actually made the goals of integration and good education more difficult to reach.

In Greenberg's view, segregation was so manifestly unjust and unconstitutional that it had to be challenged directly through the courts. However, Klarman noted that the civil rights movement predated Brown, and eventually would have achieved the same result through legislation that the Legal Defense Fund did through judicial activism, and perhaps without the violence that Brown evoked from southern whites. Turner pointed out that the NAACP's fighting for integration rather than equality -- even if it was "separate-but-equal" -- led to the schools of Prince Edward County being closed for five years and a 'lost generation' of African American students who received not even an unequal education in that time.

By way of Andrew Sullivan, Chris has likened Brown to Goodridge for being a milestone of integration, but this is a comparison with less-than-positive connotations as well. Victories in the courts frequently come with democratic backlash: the hardening of anti-choice politics in the wake of Roe, the emergence of moral majority rhetoric after organized school prayer was declared unconstitutional.

Had the Democratic Party been seen as clearly the party of civil rights at the time of Brown, it would have suffered electorally for the decision. As it was, Eisenhower gingerly enforced Brown, and Dixiecrats had the Democrats split between tentative civil rights support and bitter racist opposition all the way to George Wallace's presidential run in 1972. After signing the Civil Rights Act of 1964, Johnson supposedly told an aide that the Democratic Party had lost the South for a generation. He apparently thought that doing the right thing was worth the political blow (or, knowing LBJ, made the calculation that enfranchised African Americans would make up for the loss of the white South).

I think that Jack Greenberg and Thurgood Marshall did the right thing in taking segregation to the courts, and that the Warren Court did the right thing in declaring segregation unconstitutional. At the same time, I'm not sure I'd say that the Court was wrong to have "dodged the bullet" of ruling anti-miscegenation statutes unconstitutional in the midst of the uproar against Brown.

Liberals pay a price for sudden changes that discomfit moderates and conservatives. Recognizing that price is not blaming the people who obviously benefit (as we all do in the long run) from the progress; it is being in touch with political reality.

Today / November 9

Today in History (1965) - Catholic Worker member Roger Allen LaPorte sets himself on fire in front of the United Nations building in protest of the Vietnam War. Five years later, the Supreme Court refuses to hear Massachusetts v. Laird, a suit against the Secretary of Defense to enforce a state law granting residents the right to refuse military service in an undeclared war. Also the birthday of 1972 Vice Presidential candidates Sargent Shriver and Spiro Agnew.

Taxi Driver

I have mixed feelings about gun control and about the SecondAmendment, but stories like this always bring out my knee-jerk desire to make gun ownership much more limited:

A taxi driver killed a drunken passenger when the man refused to get out of his cab, police said. [...]

Smiley, 56, yelled that he needed to make money and couldn't drive Morningstar around all night, one witness told police. According to the report, she said Smiley demanded: "Do you want me to kill you? Do you want to die?"

Police said Smiley fired a gun twice into the pavement toward Morningstar's feet, then twice at Morningstar, and drove off.

I don't suppose there's any way to test people for their ability to distinguish between situations in which gun use would be Appropriate (armed intruders) and Not Appropriate (drunk refusing to move).

November 07, 2004

Today / November 7

Today in History (1914) - The first issue of The New Republic magazine is published. Three years later, Bolshevik leader Vladimir Lenin led his leftist revolutionaries in a nearly bloodless uprising in Petrograd against the ineffective Kerensky Provisional Government. November 7, celebrated in the Soviet Union as Revolution Day, now is Russia's Day of Accord and Reconciliation.

November 03, 2004

Today / November 4

Today in History (1979) - Iranian radicals, mostly students, invade the U.S. embassy in Tehran and take 90 hostages, 63 of whom are American. The next year, Reagan defeats Carter by a wide margin in the presidential election. Fifteen years after that, Israeli prime minister Yitzhak Rabin is mortally wounded by a right-wing Israeli assassin, after attending a peace rally in Tel Aviv's Kings Square. And happy birthday to First Lady Laura Bush.

UPDATE: The terrific speed with which this was pulled off is explained here. The Volokh-Metchis wedding of full pomp, ceremony and currently-on-order dress will happen next June. Friday was the "legal aspect of the marriage, done ahead of time because it will save us significant amounts of money on both taxes and health care coverage."

Is this becoming a trend? A friend who's at UT Law did the same -- had a quickie marriage (in Vegas) before the full-out ceremony -- so his wife could get in-state status as quickly as possible. Perhaps the frequent recitation of the benefits of marriage that are being denied to same sex couples has convinced opposite-sex couples that they had better start enjoying them more promptly.

November 01, 2004

Anti-Intellectual Bitchiness

Was what my cousin thought that law review would be, after I explained that one's work essentially is an ongoing horror of checking citations for conformity to the Bluebook. And I started complaining upon completing the first problem of the citation drill.

Chris, Wings & Vodka, all other De Novo- reading law review folks -- why do you do it? How much prestige does it take to make the best minds of my generation devote themselves to madness, starving hysterical naked, dragging themselves through the negro streets at dawn looking for a missing comma...? [reference]

Make the law reviews hire a paid staff of editors who will have the Bluebook memorized after the first couple of years and can throw the stanky thing away upon that level of seniority. (Until, of course, the Evil Quadrumvirate releases a new edition.)